New Background Check Rule

[The Verminator]

Originally Posted by dogtown tom

How on earth can you "make a good faith effort" officially or unofficially without actually running a background check?
If asking for a DL scares off criminals you need to spend a few minutes looking at how many NICS checks are denied every day because the buyer, who presented his DL, was denied.
Fake ID's are a thing.

A good faith effort is just that.........a good faith effort.

If a criminal gives you a fake ID........Not your problem.

If it DOES cause you a problem, maybe you should have taken my advice.

I have repeatedly said that selling without going through a dealer is not wise.

Maybe you haven't seen that.

[dogtown tom]

The Verminator

I don't. I'm not so stupid as to sell a gun that way.

I have made that clear.

Why the heck do you feel a need to make stuff up?

Uhhhhh.......because you wrote this:

Well, of course the seller has no way of knowing what a buyer may do........that's why you get his ID--so if HE breaks the law or sells to a criminal you can lay the blame on him.

Sound familiar?

It's pretty hypocritical to advise people to get a copy of the buyers drivers license when you say "I don't. I'm not so stupid as to sell a gun that way."

[The Verminator]

Originally Posted by dogtown tom

Uhhhhh.......because you wrote this:


Sound familiar?

It's pretty hypocritical to advise people to get a copy of the buyers drivers license when you say "I don't. I'm not so stupid as to sell a gun that way."

I didn't say that I do that.

I have consistently advised against people failing to sell or buy through a dealer and consistently said I ALWAYS sell or buy through a dealer.

Try to read better.

[JohnKSa]

I'm not going to get side-tracked. So let's go back to your original claims to keep things clear.

Originally Posted by zukiphile

According to Garland, you are less likely to be prosecuted for selling twice in five years that if than if you do so "several times over a short period", but he does not rule out a life altering prosecution over it.

The comment about selling twice in five years is not intended to indicate that "life altering prosecution" is possible because someone simply sells two firearms in five years.

It is part of a comparison in an explanation--it gives two hypothetical cases and compares them to see which of the two cases makes a person more/less likely to be found to have satisfied the repetitive sales portion of the law. It was not a statement that selling 2 guns in 5 years was going make it clear that a person was "understood to be engaged in the business", nor even that "selling several times over a short period" would. The point was the comparison. In either of the two situations stated for the sake of comparison (the more likely one or the less likely one) it would require additional evidence to prosecute.

It is not helpful to scare people by taking statements from the explanation out of context and trying to make people believe (for example) that this new rule means that selling 2 guns in 5 years might put them in jeopardy. There's a lot more to it than that and leaving it out is misleading and alarmist.

Originally Posted by zukiphile

You are aware that one can be a dealer under the rule without having sold a single firearm.

No, I am not aware of that and, in fact, that is not the case. Garland's quote specifically notes that " Even a single firearm transaction, or offer to engage in a transaction, when combined with other evidence, may be sufficient to require a license. "

If you are trying to say that if you clearly represent yourself as being in the business of selling firearms and don't have a license that they can prosecute you before you actually start selling, that is true--but that is not anything new to this rule. Therefore, to the extent that your claim is correct, it is not relevant to changes "the new rule" because it's the way things have always been--that's not an effect of the new rule. Trying to make it seem that it's a new and pertinent point of jeopardy is misleading and alarmist. Not helpful.

You know what would be really helpful? A good explanation of the new presumptions and their impact from a legal perspective. The law says that they are not to be used in criminal prosecutions--so how would they be used and what do people need to know about them?

[44 AMP]

Saying "I sold it to a guy at a gun show/WalMart parking lot/behind a dumpster who showed me he had an instate drivers license....I have no legal requirement to write that down.....any more questions?".... is all that is needed in Free America.

That's the way it used to be, and still is in states that do not have state laws requiring transfers to go through an FFL.

You needed to see some kind of ID that established the buyer was a resident of your state to ensure you weren't possibly breaking Fed law by selling to an out of state resident. After that it was up to you to decide if the buyer seemed honest or shady. THAT WAS THE GOOD FAITH EFFORT.

Unfortunately, in many places today the government accepting the judgement of the citizen as a good faith effort is now prohibited by law.

[Nathan]

I do wish I knew what was eventually going to be a crime in this new interpretation...
From other people/other venues then....

How many guns sold over a period of time would too many ?
- (I currently can't tell)

How short a period of time is too short?
- (I currently can't tell)

How many guns in an inherited "collection" sold would too many?
- (I currently can't tell)

In that possibly-LEgal sale of a 'collection' of guns, what is/would an ILlegal sale of a "self-defense" gun look like?
- (I currently can't tell)

What is a "self-defense" gun ?
- (I currently can't tell)

How often can I sell guns and not run afoul of this new interpretation?
- (I currently can't tell)

How long would I have to wait before gaining possession of a gun and selling it ?
- (I currently can't tell)

In selling a gun, do I base "profit" on price then vs price now ... or inflated/constant year dollars?
- (I currently can't tell)

In bartering a gun for "other than dollars"... what is actually going to be considered alternative "good & valuable consideration" ?
- (I currently can't tell)

But probably most important (since some say the ATF wouldn't show up at the doorstep of the little people)... what multi-facted mathematical/polynomial equation will ATF be using to combine all those factors above into tripping a Master ALERT Light ?
- (That we will probably never know)

I agree with your concern although, a few seem irrelevant and 1-2 are answered in general case law.

Still, if I sell a gun at a gun show or by posting an online ad, am I a dealer? This ought to be a simple question.

It ought to be clear without case law what is my box of legal. Laws are put in place to make limits. The limits must be written into the law. Rules are in place to tell the enforcers when to make an arrest.

If the law is you cannot be a dealer, and the rule is selling 1 gun makes you a dealer, you may get arrested, but you have a defense because you can use the meaning of the word dealer in case law to show you are not one. This is crazy how they refuse to make a law….probably don’t need any more. So, someone makes a rule saying we are going to round up 1000’s of people and make the courts tell us if they are dealers. So then how many of these people have the funds to be a test case. How many are a bad test case because of outside factors like they are drug dealers, gang bangers, wife beaters, etc. their gun sales may be legal, but who will side with them?

[JohnKSa]

... and the rule is selling 1 gun makes you a dealer, you may get arrested...

Selling 1 gun doesn't make you subject to arrest, not even at a gun show. Read the rule.

[zukiphile]

Originally Posted by Nathan

If the law is you cannot be a dealer, and the rule is selling 1 gun makes you a dealer,..

John is correct that the isolated act of selling one gun doesn't make you a dealer. Your seven word rule gives Garland undue credit for clarity and brevity.

Your concern over prosecutorial selection initially of marginal test cases to validate iffy code is solid. It's just good strategy.

[zukiphile]

Originally Posted by Verminator

Maybe you'd say, "Gosh, I just sold it to some guy."

This is slightly wide of the topic, but a prior question might involve why you are talking with anyone in federal law enforcement in the first place, and what you think you are getting out of it.

[dogtown tom]

JohnKSa

No, I am not aware of that and, in fact, that is not the case.

It sure as heck is. It's literally in the very first FAQ I posted pages ago.

Q – What does it mean to be “engaged in the business" as a wholesale or retail dealer?
A – A person is “engaged in the business” when the person devotes time, attention, and labor to dealing in firearms as a regular course of trade or business to predominantly earn a profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of the person’s personal collection of firearms. The term shall not include an auctioneer who provides only auction services on commission to assist in liquidating firearms at an estate-type auction, provided that the auctioneer does not purchase the firearms, or take possession of the firearms for sale on consignment.

The definition focuses on whether the intent underlying the sale or disposition of firearms is predominantly one of obtaining pecuniary gain. There is no statutory requirement that firearms actually be sold; indeed, a dealer may routinely (i.e., “regularly”) devote time and resources working toward that goal as a course of trade or business, but never find a buyer or consummate any sales due to insufficient demand or poor sales practices. Thus, the way that Congress drafted and amended the statute, and the way that courts have repeatedly interpreted it, no actual sales are required if the intent element is met, and the person’s conduct demonstrates their devotion of time, attention, and labor to dealing in firearms as a regular course of trade or business.

Under the BSCA, a person’s intended use for the income they receive from the sale or disposition of firearms is not relevant to the question of whether they intended to predominantly earn pecuniary gain. If a person must sell their previously acquired firearms to generate income for subsistence, such as to pay medical or tuition bills, they are still subject to the same considerations as persons who intend to sell their firearms to go on a vacation, increase their savings, or buy a sports car. If persons repetitively resell firearms and actually earn pecuniary (or monetary) gain, whether or not it was for support or subsistence, that gain is evidence demonstrating the intent element of being engaged in the business. However, a single or an isolated sale of firearms that generates pecuniary gain would not alone be sufficient to qualify as being engaged in the business without additional conduct indicative of firearms dealing. The issue is whether the person who exchanged the firearms for money, goods, or services was devoting time, attention, and labor to dealing in firearms as a regular course of trade or business and had the predominant intent to earn a profit through repetitive firearms purchases and resales.

For example, a person who bought a firearm 40 years ago and now sells it for a substantial profit to augment income during retirement is not engaged in the business based on this single firearms transfer because their intent was not to earn that pecuniary gain through repetitive purchases and resales of firearms and they are likely not dealing in firearms as a regular course of trade or business. Put another way, a bona fide collector, whose motive is not predominantly to profit, may make incidental profit in the course of enhancing a personal collection, which would not be engaged in the business.

Garland's quote specifically notes that " Even a single firearm transaction, or offer to engage in a transaction, when combined with other evidence, may be sufficient to require a license. "

Which doesn't mean a single transaction is required.

[zukiphile]

Originally Posted by JohnKSa

I'm not going to get side-tracked.

If you believed that the text of the rule would risk getting you sidetracked, it might have been better not to request it.

Originally Posted by JohnKSa

The comment about selling twice in five years is not intended to indicate that "life altering prosecution" is possible because someone simply sells two firearms in five years.

It is part of a comparison in an explanation--it gives two hypothetical cases and compares them to see which of the two cases makes a person more/less likely to be found to have satisfied the repetitive sales portion of the law. It was not a statement that selling 2 guns in 5 years was going make it clear that a person was "understood to be engaged in the business", nor even that "selling several times over a short period" would. The point was the comparison. In either of the two situations stated for the sake of comparison (the more likely one or the less likely one) it would require additional evidence to prosecute.

Your guess about Garland’s intent will be less instructive that what he writes. Since both scenarios would involve additional evidence, as all fact patterns do, that is not the salient difference between selling twice in five years, or selling “several times over a short period”.

Originally Posted by JohnKSA

It is not helpful to scare people by taking statements from the explanation out of context and trying to make people believe (for example) that this new rule means that selling 2 guns in 5 years might put them in jeopardy. There's a lot more to it than that and leaving it out is misleading and alarmist.

There is no context in which asserting that selling two guns in five years is less likely to have you deemed a dealer means you are in no jeopardy of being deemed a dealer. “Less likely” never indicates impossibility.

Originally Posted by JohnKSa

No, I am not aware of that and, in fact, that is not the case.

Yet, at post #77 you correctly assert

Originally Posted by JohnKSa

It's about intent, not about the actual outcome.

What changed your mind?

Originally Posted by JohnKSa

Garland's quote specifically notes that " Even a single firearm transaction, or offer to engage in a transaction, when combined with other evidence, may be sufficient to require a license. "

Have you missed that this formula uses the disjunctive? That means a single firearm transaction is not required, just as I explained.

Originally Posted by JohnKSa

If you are trying to say that if you clearly represent yourself as being in the business of selling firearms and don't have a license that they can prosecute you before you actually start selling, that is true--but that is not anything new to this rule.

I welcome your understanding that,

Originally Posted by zukiphile

Properly understood that means that not even a single sale is required to be found to be an unlicensed dealer; it's the other evidence that may make you a defendant.

…is correct, but

Originally Posted by JohnKSa

What it means is that it takes repetitive sales AND other evidence, it doesn't mean that it takes repetitive sales OR other evidence.

…was not because one can be a dealer in the absence of repetitive sales.

You do not use the regulatory language I quoted at your request. Instead you now wonder if I’m “trying to say” something other than “or otherwise demonstrates a willingness and ability to purchase and resell additional firearms”. I bolded that language so you wouldn’t get sidetracked. That’s not that same as “clearly represent yourself as being in the business of selling firearms”. Your substituted language begs the questions raised by the BSCA and the reg, whether one is engaged in the business.

If your contention is (I am far from certain that it is) that under the prior rule one didn’t need a "principle objective of livelihood and profit” and that one could be a presumed dealer having demonstrated a willingness and ability, yet not have bought or sold any arms, I’d be interested to see the prior regulatory text that leads you to this conclusion.

I read Garland at p.3,

The BSCA therefore removed the requirement to consider income for “livelihood” when determining that a person is “engaged in the business” of dealing in firearms at wholesale or retail.

Garland understands the prior rule to have considered income for the "livelihood" and a fact pattern without transactions wouldn't generate income. If Garland has misunderstood the requirements imposed by the prior rule, I'm open to sources that indicate his error.

Note that US v. King features attempted transactions by a straw/fraudulent licensee (the nominal license holder being at least one object of the defendant's fraud) who incorporated for engaging in that business and had purchased 20 or so firearms though that business.

Originally Posted by JohnKSa

You know what would be really helpful?

I do.

It would be helpful to a discussion of the BSCA, EO and regs not to allow your ideas of other peoples’ unstated intent to serve as your guide to statutory construction.

[The Verminator]

Originally Posted by zukiphile

This is slightly wide of the topic, but a prior question might involve why you are talking with anyone in federal law enforcement in the first place, and what you think you are getting out of it.

The Feds showed up on my doorstep and are asking me questions as they try to establish a chain of ownership on a gun listed to me that was used in a crime.

So I hope I can show that I made a good faith effort to sell it to a legal buyer who willingly shared information and seemed to be a good citizen.

Again.........I would never be in this uncomfortable situation because I would never sell a gun without going through a dealer.

Failing to do this is reckless in today's world.

[zukiphile]

Originally Posted by Verminator

The Feds showed up on my doorstep and are asking me questions as they try to establish a chain of ownership on a gun listed to me that was used in a crime.

So I hope I can show that I made a good faith effort to sell it to a legal buyer who willingly shared information and seemed to be a good citizen.

In this hypothetical, you are answering the questions of federal law enforcement who have shown up at your house, and hoping that they don't use any of it to make your life worse? I won't suggest that it never turns out that way.

Quite a few people who practice in or have experience in this area will suggest that a safer response might be "I'm not answering questions. Show a warrant or leave."

I'm not your lawyer and that's an observation, not advice.

Chatter with LE who are interested in speaking with carries risk.

[The Verminator]

Originally Posted by zukiphile

In this hypothetical, you are answering the questions of federal law enforcement who have shown up at your house, and hoping that they don't use any of it to make your life worse? I won't suggest that it never turns out that way.

Quite a few people who practice in or have experience in this area will suggest that a safer response might be "I'm not answering questions. Show a warrant or leave."

I'm not your lawyer and that's an observation, not advice.

Chatter with LE who are interested in speaking with carries risk.

Now there's some good advice from a lawyer and I didn't even have to pay for it!!!

In my case, though.........they wouldn't even show up at my door since I will only sell (or buy) through a dealer.

Wisdom eliminates potential problems.

(That is also good advice that nobody had to pay for.)

[Aguila Blanca]

Originally Posted by The Verminator

In my case, though.........they wouldn't even show up at my door since I will only sell (or buy) through a dealer.

That doesn't mean the BATFE won't knock on your door.

[The Verminator]

Originally Posted by Aguila Blanca

That doesn't mean the BATFE won't knock on your door.

Why would they knock on my door?

[44 AMP]

Why would they knock on my door?

They would knock if they are being polite.

If your name comes up in their investigation, they might want to talk to you.

Selling a gun to a dealer, or through a dealer does not eliminate that possibility.

[The Verminator]

Originally Posted by 44 AMP

They would knock if they are being polite.

If your name comes up in their investigation, they might want to talk to you.

Selling a gun to a dealer, or through a dealer does not eliminate that possibility.

How would my name come up?

[dogtown tom]

The Verminator

Why would they knock on my door?

Never heard of a firearms trace?

When LE runs a firearms trace on a firearm recovered at a crime scene, traffic stop, or other reason. they contact the ATF National Tracing Center.

They give the NTC the information on the firearm, NTC in turn contacts the manufacturer or importer to find out who they shipped that firearm to and eventually tracing it to the first nonlicensee transfer. (You)

Like this:
LE requesting agency> ATF NTC> manufacturer or importer> distributor> dealer> buyer. Each of the licensees has 24 hours to respond to that trace request. Once it gets to the licensee that transferred to a nonlicensee (You), the dealer will fax or email that Form 4473 you filled out to the NTC.

NTC isn't going to call you because your phone# isn't part of the 4473 information......they'll come a knocking. Asking if you know who you sold it to. If you don't remember, the trace ends. If you do, they'll ask for that buyers contact info and keep going.

Selling it to a gun dealer or using an dealer to facilitate the transfer doesn't mean they won't contact you.

That trace isn't going to solve a crime. It's theatre. ATF uses firearms trace data to determine which FFL's have short "time to crime" sales. If a dealer has a high number of sales that result in a gun trace he may face extra scrutiny during compliance inspections.

[The Verminator]

Originally Posted by dogtown tom

Never heard of a firearms trace?

When LE runs a firearms trace on a firearm recovered at a crime scene, traffic stop, or other reason. they contact the ATF National Tracing Center.

They give the NTC the information on the firearm, NTC in turn contacts the manufacturer or importer to find out who they shipped that firearm to and eventually tracing it to the first nonlicensee transfer. (You)

Like this:
LE requesting agency> ATF NTC> manufacturer or importer> distributor> dealer> buyer. Each of the licensees has 24 hours to respond to that trace request. Once it gets to the licensee that transferred to a nonlicensee (You), the dealer will fax or email that Form 4473 you filled out to the NTC.

NTC isn't going to call you because your phone# isn't part of the 4473 information......they'll come a knocking. Asking if you know who you sold it to. If you don't remember, the trace ends. If you do, they'll ask for that buyers contact info and keep going.

Selling it to a gun dealer or using an dealer to facilitate the transfer doesn't mean they won't contact you.

That trace isn't going to solve a crime. It's theatre. ATF uses firearms trace data to determine which FFL's have short "time to crime" sales. If a dealer has a high number of sales that result in a gun trace he may face extra scrutiny during compliance inspections.

Seems to me they wouldn't need to talk to me.

Since I sold it through a dealer that info would already be on record.

Thanks anyway.

[JohnKSa]

Have you missed that this formula uses the disjunctive? That means a single firearm transaction is not required, just as I explained.

As I said in my previous post, to the extent that this is true, it's always been true--it's not something new with this law. If you offer to deal in firearms or otherwise manage make it clear to that you are dealing in firearms when you don't have a license, that's basically admitting you are violating the law even if you haven't sold any yet. That would have been just as much of a crime under the old law.

The idea that now things are different in that respect due to the new rule just isn't correct.

There is no context in which asserting that selling two guns in five years is less likely to have you deemed a dealer means you are in no jeopardy of being deemed a dealer.

Correct. The problem with your contention is that he doesn't say it's "less likely to have you deemed a dealer", the context is blatantly clear--he flat out states that it's ...'less likely to be understood as “repetitively” selling firearms.'.

The repetitive selling of firearms is only one possibly qualifying aspect of the law as you clearly know based on what you have posted here. Therefore you also know that being deemed to be "repetitively selling firearms" is absolutely not equivalent to "being deemed a dealer".

[The Verminator]

It occurs to me that if you haven't sold any guns no agent is going to waste any time on you.

Even if you go to gun shows and babble all day about selling guns.

They have actual sleazebags that are constantly selling to felons who run guns to the thugs in major cities and are a threat to the lives of innocent people..........thus they have no time to waste on wannabes blowing hot air.

This notion of an arrest without a gun sale is so abstruse and irrelevant that it's not even moot.

[stagpanther]

This notion of an arrest without a gun sale is so abstruse and irrelevant that it's not even moot.

Don't know what that means--but it sounds good.

[dogtown tom]

The Verminator

Seems to me they wouldn't need to talk to me.

Since I sold it through a dealer that info would already be on record.

Again, that record is the Form 4473 that you filled out when you bought the gun. That 4473 doesn't say what you did with it after you left the gun shop.
Thats why they will contact you.

ATF doesn't maintain a database of Form 4473's despite what the conspiracy theorists believe. Thats why they have to run a trace. The only 4463's ATF gets are from dealers who are out of business.

[The Verminator]

Originally Posted by dogtown tom

Again, that record is the Form 4473 that you filled out when you bought the gun. That 4473 doesn't say what you did with it after you left the gun shop.
Thats why they will contact you.

ATF doesn't maintain a database of Form 4473's despite what the conspiracy theorists believe. Thats why they have to run a trace. The only 4463's ATF gets are from dealers who are out of business.

What about the 4473 that the new buyer filled out when I sold the gun through the dealer?

If they had the info from mine they certainly would have the info from his.